[Federal Register Volume 67, Number 203 (Monday, October 21, 2002)]
[Proposed Rules]
[Pages 64555-64568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26394]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 67, No. 203 / Monday, October 21, 2002 / 
Proposed Rules  

[[Page 64555]]



FEDERAL ELECTION COMMISSION

11 CFR Parts 100, 104, 105, 108 and 109

[Notice 2002-19]


Bipartisan Campaign Reform Act of 2002; Reporting

AGENCY: Federal Election Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Election Commission seeks comments on the proposed 
regulations relating to new requirements for the reporting of 
electioneering communications and independent expenditures, monthly 
reporting by national political party committees and quarterly 
reporting by the principal campaign committees of candidates for the 
House of Representatives and Senate, as well as reporting related to 
building funds. These regulations would implement several requirements 
in the Bipartisan Campaign Reform Act of 2002 (``BCRA'') that 
significantly amend the Federal Election Campaign Act of 1971, as 
amended (``FECA'' or ``the Act''). Please note that the Commission has 
not made a final decision on any of these proposals. Further 
information is contained in the Supplementary Information that follows.

DATES: Comments must be received on or before November 8, 2002.

ADDRESSES: All comments should be addressed to Mr. John Vergelli, 
Acting Assistant General Counsel, and must be submitted in either 
electronic or written form. Electronic mail comments should be sent to 
[email protected] and must include the full name, electronic mail 
address, and postal service address of the commenter. Electronic mail 
comments that do not contain the full name, electronic mail address, 
and postal service address of the commenter will not be considered. 
Faxed comments should be sent to (202) 219-3923, with printed copy 
follow-up to ensure legibility. Written comments and printed copies of 
faxed comments should be sent to the Federal Election Commission, 999 E 
Street, NW., Washington, DC 20463. Commenters are strongly encouraged 
to submit comments electronically to ensure timely receipt and 
consideration. The Commission will make every effort to post public 
comments on its web site within ten business days of the close of the 
comment period.

FOR FURTHER INFORMATION CONTACT: Mr. John Vergelli, Acting Assistant 
General Counsel, or Ms. Cheryl Fowle, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002 
(``BCRA''), Public Law 107-155, 116 Stat. 81 (March 27, 2002), contains 
extensive and detailed amendments to the Federal Election Campaign Act 
of 1971, as amended, 2 U.S.C. 431 et seq. This is one in a series of 
Notices of Proposed Rulemakings (``NPRM'') the Commission has recently 
published to meet the rulemaking deadlines set out in BCRA. The 
deadline for the promulgation of these rules is 270 days after the date 
of enactment, which is December 22, 2002.

Introduction

    This NPRM addresses: (1) Reporting of electioneering 
communications; (2) reporting of independent expenditures; (3) 
quarterly reporting by the principal campaign committees of candidates 
for the House of Representatives and the Senate; (4) monthly reporting 
by political party committees; and (5) the reporting of funds for 
political party committee office buildings.
    The Commission sought comments on two of these topics previously in 
Notices of Proposed Rulemakings on ``Electioneering Communications,'' 
67 FR 51,131 (August 7, 2002); and ``Coordinated and Independent 
Expenditures,'' 67 FR 60,042 (September 25, 2002). Another topic, 
addressing the reporting of funds for the purchase or construction of 
party office buildings, is based on a recently published final rule 
(``Prohibited and Excessive Contributions: Non-Federal Funds or Soft 
Money; Final Rule,'' 67 FR 49,123 and 49,127 (July 29, 2002)). The last 
two topics addressing the schedule of reporting for national political 
party committees and the principal campaign committees of House and 
Senate candidates have not previously been addressed in a BCRA-related 
NPRM.
    In BCRA, Congress required the Commission to promulgate standards 
for reporting software, and also imposed certain other requirements on 
the Commission, and on various persons who file reports with the 
Commission, that will take effect when that computer software becomes 
available. 2 U.S.C. 434(a)(12). Although these Congressional mandates 
are related to reporting, which is the subject of this NPRM, the 
Commission does not propose to address the mandates here. The computer 
software standards will depend largely upon the results of this 
reporting rulemaking, and on the development of reporting forms 
following the completion of this rulemaking. Therefore, the Commission 
proposes to address the mandates in 2 U.S.C. 434(a)(12) as soon as 
feasible, and will solicit public comments on the mandates at that 
time.

Independent Expenditures and Electioneering Communications

Proposed 11 CFR 100.19 File, Filed, or Filing (2 U.S.C. 434(a))

    The Commission's regulations at 11 CFR 100.19 define file, filed, 
and filing. Paragraph (a) of section 100.19 would be unaffected by this 
rulemaking, except for a new heading. Proposed paragraph (b) of section 
100.19 would retain the pre-BCRA general rule that a document is 
considered timely filed if it is: (1) Delivered to the appropriate 
filing office (either the Commission or the Secretary of the Senate), 
or (2) sent by registered or certified mail and postmarked by 11:59 
p.m. Eastern Standard/Daylight Time of the prescribed filing date--
except for pre-election reports. The proposed revisions to paragraph 
(b) of section 100.19 would clarify that paragraph (b) is the general 
rule, but does not apply to reports addressed by paragraph (c) through 
proposed new paragraph (f).
    Those exceptions would be as follows: Paragraph (c) for electronic 
filing--``filed'' means received by the Commission at or before 11:59 
p.m. Eastern Standard/Daylight Time on the filing date; paragraph (d) 
for 24-hour and 48-hour reports of independent expenditures--``filed'' 
means received by the Commission no later than 11:59 p.m. Eastern 
Standard/Daylight Time of

[[Page 64556]]

the day following (24-hour reports) or the second day following (48-
hour reports) the date on which the spending threshold is reached in 
accordance with 11 CFR 104.4(f); paragraph (e) for ``48-hour notices of 
last-minute contributions'' (48-hour notices filed by authorized 
committees of candidates of contributions of $1,000 or more received 
after the 20th day but more than 48 hours before 12:01 a.m. of the day 
of an election)--``filed'' means received by the Commission or the 
Secretary of the Senate within 48 hours of the receipt of a ``last-
minute'' contribution of $1,000 or more; proposed paragraph (f) for 24-
hour statements of electioneering communications--``filed'' means 
received by the Commission by 11:59 p.m. Eastern Standard/Daylight Time 
of the day following the disclosure date (see 11 CFR 104.20).
    Paragraphs (c) and (e) of Sec. 100.19 would remain unchanged, 
except for new headings.
    Proposed revisions to paragraph (d) of section 100.19 would also 
require that the new 48-hour reports of independent expenditures, like 
the 24-hour reports, must be received rather than filed by the filing 
deadline. The proposed 48-hour reporting provision would allow filers 
to submit their reports using facsimile machines or electronic mail, as 
long as they are not required under 11 CFR 104.18 to file 
electronically. Under pre-BCRA paragraph (d) of Sec. 100.19, 24-hour 
reports of independent expenditures are only considered timely filed if 
they are received by the Commission or Secretary of the Senate within 
24 hours of the time the expenditure is made.\1\ Sending 24-hour 
reports by mail is not a viable option because it is unlikely these 
reports will be received by the Commission within 24 hours of the 
making of the expenditure. See ``Final Rules and Explanation and 
Justification for 11 CFR 100.19,'' 67 FR 12,834 (March 20, 2002). Pre-
BCRA paragraph (d) also states that 24-hour reports may be filed by 
facsimile machine or electronic mail, in addition to other permissible 
means of filing (e.g., hand-delivery or overnight courier). Because the 
reasons behind the handling of 24-hour reports apply equally to the 
essentially similar 48-hour reports, the Commission is proposing this 
parallel rule.
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    \1\ Note that BCRA, as passed on February 14, 2002, in the House 
of Representatives and on March 20, 2002, in the Senate, would have 
required 24-hour reports to be filed rather than received within 24 
hours of the time the independent expenditure was made. In technical 
corrections to BCRA, Congress amended section 212 of BCRA by 
reinstating the received requirement. H.R. Con. Res. 361, March 22, 
2002.
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    Under 2 U.S.C. 434(f)(1), electioneering communications must be 
reported within 24 hours of the ``disclosure date.'' See proposed 11 
CFR 104.20. The Commission proposes to add new paragraph (f) to 11 CFR 
100.19 to require these 24-hour statements to be received by the 
Commission no later than 11:59 p.m. Eastern Standard/Daylight Time of 
the day following the disclosure date, rather than filed by that time. 
In addition, to assist filers with meeting this deadline, the proposed 
rule would allow them to file their 24-hour statements by facsimile 
machine or electronic mail. For the same reasons that are discussed 
with regard to proposed paragraph (d) of 11 CFR 100.19, this proposed 
paragraph would follow the timing and filing methods of 24-hour reports 
for independent expenditures.

11 CFR 104.5(g) and (j) Filing Dates (2 U.S.C. 434(a)(2))

    Proposed paragraph (g) of 11 CFR 104.5 would move the pre-BCRA 
contents of paragraph (g) to proposed paragraph (g)(2) with revisions, 
and would add a new paragraph (g)(1), which would require that 48-hour 
reports of independent expenditures must be received by the Commission 
no later than 11:59 p.m. Eastern Standard/Daylight Time of the second 
day following the date on which a communication is publicly distributed 
or otherwise publicly disseminated. Note that the term ``publicly 
distributed'' refers to communications distributed by radio or 
television (see 11 CFR 100.29(a)(5)) and the term ``publicly 
disseminated'' refers to communications that are made public via other 
media, e.g., newspaper, magazines, handbills. Pre-BCRA paragraph (g) of 
11 CFR 104.5 states that 24-hour reports of independent expenditures 
must be received by the appropriate officers no later than 24 hours 
after such independent expenditure is made.
    Proposed paragraph (j) of Sec. 104.5 would address the filing dates 
for electioneering communications. Specifically, it would provide that 
the 24-hour statements must be received by the Commission by 11:59 p.m. 
Eastern Standard/Daylight Time on the day following the date of 
disclosure.

11 CFR 105.2 Place of Filing; Senate Candidates, Their Principal 
Campaign Committees, and Committees Supporting Only Senate Candidates 
(2 U.S.C. 434(g)(3))

    The Commission's pre-BCRA regulations require that 24-hour reports 
of independent expenditures supporting or opposing Senate candidates be 
filed with the Secretary of the Senate. See pre-BCRA 11 CFR 104.4(c), 
109.2(b). In BCRA, Congress establishes the Commission as the place of 
filing for both 24- and 48-hour reports of independent expenditures, 
regardless of the office being sought by the clearly identified 
candidate. 2 U.S.C. 434(g)(3)(A). The proposed revisions to Sec. 105.2 
would place the text of pre-BCRA 11 CFR 105.2 in proposed paragraph 
(a), adding the heading, ``General Rule.'' New proposed paragraph (b) 
of 11 CFR 105.2 would be headed, ``Exception,'' and would state that 
24- and 48-hour reports of independent expenditures, must be filed with 
the Commission even if the communication refers to a candidate for the 
Senate. 2 U.S.C. 434(f).

11 CFR 104.4 Independent Expenditures by Political Committees (2 U.S.C. 
434(b), (g))

    The Commission has established reporting requirements for political 
committees making independent expenditures in accordance with 2 U.S.C. 
434(b) and (g). See pre-BCRA 11 CFR 104.4. Paragraph (a) of Sec. 104.4 
would be unaffected, other than the addition of a new heading, a 
grammatical correction, and an updated cross-reference.
    Proposed new paragraph (b) would address reports of independent 
expenditures made by a political committee at any point in the campaign 
up to and including the 20th day before an election. Proposed paragraph 
(b)(1) would address independent expenditures aggregating less than 
$10,000 with respect to a given election during the calendar year, up 
to and including the 20th day before an election. This calendar year 
aggregation would be based on 2 U.S.C. 434(b)(4), which requires 
calendar year aggregation for reports of independent expenditures by 
political committees. Under this calendar year approach, political 
committees would report the independent expenditures on Schedule E of 
FEC Form 3X, filed no later than the regular reporting date under 11 
CFR 104.5. The Commission would interpret 2 U.S.C. 434(g), added to the 
Act by BCRA, to require aggregation toward the various thresholds for 
independent

[[Page 64557]]

expenditure reporting to be done on a per election basis within the 
calendar year. For example, if a political committee made $5,000 in 
independent expenditures with respect to a Senate race, and $5,000 in 
independent expenditures with respect to a House race, and both of 
these events occurred before the 20th day before the election, that 
political committee would not be required to file 48-hour reports, but 
would be required to disclose the independent expenditures in its 
regularly scheduled reports. If the political committee makes $5,000 in 
independent expenditures with respect to a clearly identified candidate 
in the primary, and an additional $5,000 in independent expenditures 
with respect to the same candidate in the general election, no 48-hour 
reports would be required; but again the committee would be required to 
disclose the independent expenditures in its regularly scheduled 
reports. The Commission requests comments on whether a different time 
period, such as an election cycle, should be employed instead of the 
calendar year period.
    Paragraph (b)(2) would address independent expenditures aggregating 
$10,000 or more during the calendar year up to and including the 20th 
day before an election. These reports would also be filed on Schedule E 
of FEC Form 3X. However, these reports would be required to be received 
by the Commission no later than 11:59 p.m. Eastern Standard/Daylight 
Time of the second day following the date on which a communication that 
constitutes an independent expenditure is publicly distributed or 
otherwise publicly disseminated. Further, political committees would 
have to file an additional 48-hour report each time subsequent 
independent expenditures reach the $10,000 threshold with respect to 
the same election to which the first report related.
    The Commission proposes revisions to renumbered paragraph (c) 
(i.e., pre-BCRA 11 CFR 104.4(b)) stating that 24-hour reports must be 
received by the Commission no later than 11:59 p.m. Eastern Standard/
Daylight Time of the day following the date on which the $1,000 
threshold is reached during the final 20 days before the election. 
Further, proposed revisions to this paragraph would specifically state 
that additional 24-hour reports must be filed each time during the 24-
hour reporting period in which subsequent independent expenditures 
reach or exceed the $1,000 threshold with respect to the same election 
to which the previous report related.
    Proposed paragraph (d) would contain the report verification 
information currently found in pre-BCRA paragraph (b) of Sec. 104.4. 
There would be non-substantive grammatical changes to conform this 
paragraph to other changes in the overall section.
    Proposed paragraph (e) would largely restate pre-BCRA paragraph (c) 
of Sec. 104.4. The most significant proposed change to this paragraph 
would be to make the Commission and not the Secretary of the Senate the 
place of filing for 24- and 48-hour reports of independent expenditures 
relating to Senate candidates. 2 U.S.C. 434(g)(3). See the discussion 
of 11 CFR 105.2, above.
    Proposed paragraph (f) of 11 CFR 104.4 would address aggregation of 
independent expenditures for reporting purposes. The provisions of pre-
BCRA 11 CFR 109.1(f) would be redesignated and revised to explain when 
and how political committees and other persons making independent 
expenditures must aggregate independent expenditures for purposes of 
determining whether 48-hour and 24-hour reports must be filed. Note 
that this proposed aggregation rule would apply to independent 
expenditures by political committees, as well as other persons; 
proposed 11 CFR 109.10(c) and (d) would cross-refer to this paragraph. 
Proposed paragraph (f) would establish that every date on which a 
communication that constitutes an independent expenditure is ``publicly 
distributed'' or otherwise publicly disseminated serves as the date 
that every person must use to determine whether the total amount of 
independent expenditures has, in the aggregate, reached or exceeded the 
threshold reporting amounts ($1,000 for 24-hour reports or $10,000 for 
48-hour reports). The term ``publicly distributed'' would have the same 
meaning as in new 11 CFR 100.29(b)(6), which the Commission is 
promulgating as part of a separate rulemaking. Thus, proposed paragraph 
(f) would set the same date as the starting date from which a person 
would have one or two days, where applicable, to file a 24-hour or 48-
hour report on independent expenditures.
    In addition, Congress changed the reporting requirements by adding 
the phrase ``or contracts to make'' to the statute. 2 U.S.C. 434(g)(1), 
(2). BCRA ties 24-hour and 48-hour reporting of independent 
expenditures to the time when a person ``makes or contracts to make 
independent expenditures * * *'' aggregating at or above the $1,000 and 
$10,000 thresholds, respectively. 2 U.S.C. 434(g)(4). Therefore, under 
proposed 11 CFR 104.4(f), each person would be required to include as 
of the proposed trigger date, in the calculation of the aggregate 
amount of independent expenditures, both disbursements for independent 
expenditures and all contracts obligating funds for disbursement for 
independent expenditures. Under this approach and the proposed timing 
requirements described above, once a communication that constitutes an 
independent expenditure is publicly distributed or disseminated as 
explained above, the person who paid for, or who contracted to pay for, 
the communication would be able to determine whether the communication 
satisfied the ``express advocacy'' requirement of the definition of an 
independent expenditure (see 11 CFR 100.16) and would therefore be able 
to determine whether the disbursement for that communication 
constituted an independent expenditure. A person reaching or exceeding 
the applicable reporting threshold would be responsible for submitting 
a report by 11:59 p.m. Eastern Standard/Daylight Time of the day after, 
for 24-hour reporting, or two days after, for 48-hour reporting, the 
date of the public distribution or dissemination of that communication. 
Please note that under the proposed rules, independent expenditures 
would be reported by political committees after a disbursement is made, 
or a debt reportable under 11 CFR 104.11(b) is incurred, for an 
independent expenditure, but no later than 11:59 p.m. of the day 
following the day on which the independent expenditure is first 
publicly distributed or otherwise publicly disseminated.
    In some situations, a political committee will not make payment or 
incur a reportable debt before the communication underlying the 
independent expenditure is publicly distributed or otherwise publicly 
disseminated. If the communication is both publicly distributed or 
otherwise publicly disseminated and paid for in the same reporting 
period, then the committee would report the independent expenditure on 
Schedule E for that reporting period. If the communication is aired in 
one reporting period (e.g., during the 24-hour reporting period) and 
payment is made in a later reporting period (e.g., during the post-
general election period), then the committee would report the 
independent expenditure as a memo entry on Schedule E in the reporting 
period in which payment is made.
    In other situations, however, a political committee may pay the 
production and distribution costs associated with an independent

[[Page 64558]]

expenditure in one reporting period, but not publicly distribute or 
otherwise publicly disseminate it until a later reporting period. In 
this case, the committee would report the payment as a disbursement on 
Schedule B for operating expenditures. When, in a subsequent reporting 
period, the communication is publicly distributed or otherwise publicly 
disseminated, the committee would file a Schedule E for the independent 
expenditure referencing the earlier Schedule B transaction. The 
committee would also report the disbursement for the independent 
expenditure as a negative entry on Schedule B so the total 
disbursements are not inflated. Alternatively, if the committee wishes 
to disclose the independent expenditure before the communication is 
publicly disseminated, it could report the independent expenditure on 
Schedule E for the reporting period in which the disbursement is made, 
with no further reporting obligation except for the 48-hour report if 
the total disbursements for independent expenditures equal or exceed 
$10,000 at the time the communication is publicly distributed or 
otherwise publicly disseminated.
    Obligations incurred but not yet paid (that are reportable debts), 
must be reported on Schedule D. When, in a subsequent reporting period, 
the communication is publicly distributed or otherwise publicly 
disseminated, the committee must file a Schedule E referencing the debt 
on Schedule D. The committee must continue to report the debt on 
Schedule D (and any payment on it on Schedule E), until the debt is 
extinguished.
    The Commission seeks comment on its proposed interpretation of 
BCRA's ``makes or contracts to make'' language and the triggering 
mechanism for 24-hour and 48-hour reports. Specifically, the Commission 
seeks comment on an alternative interpretation that would make the 
actual disbursement or the execution of the contract to make the 
disbursement for an independent expenditure, rather than the public 
distribution or dissemination of the resulting communication, the 
triggering mechanism for the reporting requirements once the 
disbursements and obligations equal or exceed the respective 
thresholds. This change would require earlier reporting than is 
currently required or proposed (i.e., when the communication is 
publicly disseminated). The policy reasons for adopting this 
alternative interpretation would be similar to those described in the 
NPRM on the reporting of electioneering communications. See 
``Electioneering Communications'' NPRM, 67 FR 51,131 (Aug. 7, 2002).

Proposed 11 CFR 109.10 Independent Expenditure by Persons Other Than 
Political Committees

    Proposed new Sec.  109.10 would set forth the revised reporting 
requirements of pre-BCRA Sec.  109.2. Under proposed new Sec.  109.10, 
persons other than political committees would have to report their 
independent expenditures on either FEC Form 5 or in a signed statement 
containing certain information regarding the person who made the 
independent expenditure and the nature of the expenditure itself.
    Proposed paragraph (a) of 11 CFR 109.10 would provide a cross-
reference to 11 CFR 104.4 for political committees, under which they 
must report independent expenditures. Paragraph (a) of pre-BCRA 11 CFR 
109.2 would be moved to proposed paragraphs (b) and (c) of Sec.  
109.10.
    Proposed paragraph (c) would address reports of independent 
expenditures aggregating $10,000 or more with respect to a given 
election from the beginning of the calendar year up to and including 
the 20th day before an election. This proposed paragraph would require 
that 48-hour reports of independent expenditures be received rather 
than filed by 11:59 pm of the second day after the date on which the 
$10,000 threshold is reached. See discussion of received versus filed 
in Sec.  100.19, above. Pre-BCRA paragraph (b) of Sec.  109.2 indicates 
that 24-hour reports must be received after a disbursement is made for 
an independent expenditure, but no later than 24 hours after an 
independent expenditure is ``made'' under pre-BCRA paragraph 109.1(f). 
See the discussion of proposed 11 CFR 104.4(f), above. Under the 
proposed rules, paragraph (b) of pre-BCRA Sec.  109.2 would be moved to 
new paragraph (d) of 11 CFR 109.10 and revised to reflect the 
modification to the aggregation and filing requirements in proposed 11 
CFR 100.19(d) and 104.4 that are discussed above.
    Proposed revisions to paragraph (d) of 11 CFR 109.10 (pre-BCRA 11 
CFR 109.2(b)) would also mirror the changes in 11 CFR 104.4(c) as to 
when 24-hour reports of independent expenditures aggregating $1,000 or 
more after the 20th day before the election.
    Proposed paragraph (e) of 11 CFR 109.10 (i.e., pre-BCRA 11 CFR 
109.2(a)(1) and (c)) would address the contents and verification of 
statements filed in lieu of FEC Form 5. Proposed paragraph (e) would 
include one significant change from pre-BCRA 109.2(a)(1) and (c): A 
person making an independent expenditure would now be required to 
certify that the expenditure was made independently from a political 
party committee and its agents, in addition to the pre-BCRA requirement 
of certification that the expenditure was not coordinated with a 
candidate, the candidate's authorized committee, or an agent of either 
of the foregoing. This change reflects the addition of political party 
committees to the definition of ``independent expenditure'' in 2 U.S.C. 
431(17) and the description of coordination in 2 U.S.C. 
441a(a)(7)(B)(ii) under BCRA. For the same reasons explained with 
reference to the definition of ``independent expenditure'' in proposed 
11 CFR 100.16, the Commission would continue to include 
``consultation'' in the description of activity that would cause an 
expenditure to lose its independence (i.e., ``in cooperation, 
consultation, or concert with'' a candidate or political party 
committee) even though the statutory definition in 2 U.S.C. 431(17) 
does not retain the term.

Proposed 11 CFR 104.20--Reporting Electioneering Communications

1. Introduction

    In the Electioneering Communications Final Rules, the Commission 
stated it would revise the proposed rules on reporting electioneering 
communications and re-propose the rules as part of this rulemaking.\2\ 
Consequently, these proposed rules include the reporting requirements 
for electioneering communications. Although, the Electioneering 
Communications NPRM originally would have designated the reporting of 
electioneering communications as Sec.  104.19, the proposed rules would 
designate reporting of electioneering communications as section 
proposed Sec.  104.20. Please note that in the narrative that follows, 
citations to Sec.  104.19 refer to the original proposed rules in the 
Electioneering Communications NPRM, and citations to Sec.  104.20 refer 
to the proposed rules in this BCRA reporting NPRM.
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    \2\ The original proposed rules were part of the Electioneering 
Communications NPRM. See 67 FR 51,131, 51,145 (Aug. 7, 2002).
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2. Disclosure Date

    BCRA requires persons who make electioneering communications 
costing more than $10,000 to file disclosure statements with the FEC 
within 24 hours of the disclosure date. 2 U.S.C. 434(f)(1). In the 
Electioneering Communications NPRM, proposed Sec.  104.19(b) would have 
defined

[[Page 64559]]

``disclosure date'' as ``the first date by which a person has made one 
or more disbursements, or has executed one or more contracts to make 
disbursements, for the direct costs of producing or airing 
electioneering communications aggregating in excess of $10,000; * * *'' 
67 FR at 51,145 (August 7, 2002). The Electioneering Communications 
NPRM, however, sought comment on whether the disclosure date should be 
the date on which the electioneering communication aired. Thus, under 
this proposal, an organization could make disbursements or enter into a 
contract to make disbursements that exceed $10,000, but would not be 
required to disclose the disbursements or contract until the 
electioneering communication is aired. Although BCRA uses the term 
``airing,'' the Commission has determined that ``publicly distributed'' 
more accurately encompasses how electioneering communications are 
disseminated to the public, including the airing of these 
communications. In the Electioneering Communications Final Rules, the 
Commission defines ``publicly distributed'' to mean ``aired, broadcast, 
cablecast, or otherwise disseminated through the facilities of a 
television station, radio station, cable television system, or 
satellite system.'' 11 CFR 100.29(b)(6). Therefore, the proposed Sec.  
104.20(a)(5) would adopt the definition of ``publicly distributed'' in 
11 CFR 100.29(b)(6) and the term ``publicly distributed'' would be used 
throughout the proposed rules instead of ``airing.''
    All of the commenters who addressed this issue disagreed with the 
proposed rule and advocated adopting a final rule that would define 
``disclosure date'' as the date of the public distribution of the 
electioneering communication.\3\ They argued that there is no 
electioneering communication, and therefore no reporting requirement, 
until the communication is actually publicly distributed. One witness 
at the August 28, 2002 public hearing on electioneering communications 
did acknowledge that in some cases it may be difficult to ascertain 
when an electioneering communication is publicly distributed for 
purposes of triggering the 24-hour reporting period because the 
contract may not specify a precise time that the communication will be 
publicly distributed or because in some instances the broadcaster does 
not air the communication during the block of time specified in the 
contract. In addition, the Commission believes that there could be 
legal and practical concerns with compelling disclosure of potential 
electioneering communications before they are finalized and publicly 
distributed, particularly when such disclosure could force reporting 
entities to divulge confidential strategic and political information 
about their possible future activities.
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    \3\ Two commenters, submitting joint written comments, 
originally supported a two-step reporting process--a general report 
when there is a disbursement or a contract followed later by a 
specific report when the electioneering communication is aired. 
While testifying at the Commission's public hearing, these 
commenters agreed that defining ``disclosure date'' as the date of 
airing is an acceptable alternative.
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    Taking into consideration the comments described above, the 
Commission proposes to make the date that an electioneering 
communication is publicly distributed as the disclosure date under 
proposed Sec. 104.20(a)(1). The Commission's proposal reflects its 
concerns that there are legal and practical issues associated with 
compelling disclosure of potential electioneering communications before 
they are finalized and publicly distributed. To address the concern 
that a person may not know the exact time an electioneering 
communication will be publicly distributed during the day that it is 
scheduled to air, the Commission is proposing to interpret the 24-hour 
period in which to report the electioneering communication as starting 
at the end of the day in which the communication is publicly 
distributed. Therefore, proposed Sec. 104.20(b) would require reporting 
of an electioneering communication by the end of the following day. The 
Commission seeks comment on this interpretation.

3. Aggregation of Direct Costs of Producing or Airing Electioneering 
Communications

    In the Electioneering Communications NPRM, proposed Sec. 104.19(a) 
would have required every person who makes a disbursement, or executes 
a contract, for the direct costs of producing or airing electioneering 
communications that aggregate in excess of $10,000 during a calendar 
year to file a statement with the Commission. Furthermore, proposed 
Sec. 104.19(a)(2) would have included a non-exhaustive list of what 
constitutes direct costs of electioneering communications. The 
Commission sought comment on two issues relating to this proposed 
requirement. The first was whether the list in proposed 
Sec. 104.19(a)(2) was adequate and whether the list should be 
exhaustive. The second issue was whether the direct costs of producing 
an electioneering communication and the direct costs of airing it 
should be aggregated separately or together to determine whether the 
$10,000 threshold has been reached.
    The commenters to the Electioneering Communications NPRM were split 
on the issue of whether the list of direct costs in proposed 
Sec. 104.19(a)(2) should be exhaustive or non-exhaustive. One commenter 
who supported an exhaustive list argued that it is clear what is 
involved in producing a communication, and the proposed rule adequately 
addresses that. Another commenter recommended a non-exhaustive list so 
that the Commission could retain flexibility to identify other costs 
associated with producing and airing communications not listed in the 
proposed rules.
    In order to provide clear guidance on this issue, proposed 11 CFR 
104.20(a)(2) would include an exhaustive list of direct costs 
associated with producing or airing electioneering communications 
within the proposed definition of ``direct costs of producing or airing 
electioneering communications.'' The Commission seeks comments on 
whether there are other direct costs associated with producing or 
airing electioneering communications that should be included in the 
proposed definition. In particular, the Commission seeks comment on 
what, if any, other in-house production costs should be considered 
direct costs. The Commission also welcomes additional comments on 
whether the list in proposed Sec. 104.20(a)(2) should be exhaustive.
    The commenters also disagreed on the question of the aggregation of 
direct costs of producing or airing electioneering communications. Some 
commenters argued that BCRA should be read to require that these costs 
should be aggregated separately. Under this interpretation, if it costs 
a person $7,000 to produce the electioneering communication and $7,000 
to air it, the threshold has not been met because neither the direct 
costs of producing or airing the electioneering communication reached 
$10,000. In contrast, other commenters argued that BCRA mandates that 
the direct costs of producing and airing the electioneering 
communication be aggregated. Under this approach, the example above 
would result in the $10,000 threshold being met because the direct 
costs of producing and airing would be $14,000.
    The language in proposed Sec. 104.20(b) would be identical to the 
language originally proposed in Sec. 104.19(a). Thus, when the direct 
costs of producing or airing an electioneering communication exceed 
$10,000 when aggregated together, the person who is making the 
electioneering communication would be

[[Page 64560]]

required to file a statement with the Commission when the 
electioneering communication is publicly distributed.

4. Direction or Control

    The Electioneering Communication NPRM included two proposed 
alternatives, identified as Alternative 4-A and Alternative 4-B, to 
implement the BCRA requirement to disclose ``any person sharing or 
exercising direction or control over the activities'' of the person 
making the disbursement for electioneering communications. See 2 U.S.C. 
434(f)(2)(A). Many of the commenters expressed concern that both 
alternatives are vague and could encompass a large number of people, 
especially for electioneering communications made by membership 
organizations. Some of the commenters were also concerned that 
disclosing this information may reveal sensitive or confidential 
information and the decision-making processes of organizations, 
especially non-profit organizations, thereby placing them at a 
competitive disadvantage. For these reasons, these commenters argued 
that the Commission should require limited, if any, disclosure of 
persons who share or exercise direction or control over the person who 
makes disbursements for electioneering communications or the activities 
involved in making electioneering communications.
    In contrast, several commenters, including the Congressional 
sponsors of BCRA, disagreed with both alternatives because in their 
view neither would disclose sufficiently the information required by 
BCRA. See id. They argued that the purpose of this disclosure 
requirement is to reveal not only those who have direction or control 
over the electioneering communications, but also those who have 
direction or control over the organization that makes the 
electioneering communications.
    While the Commission appreciates the concerns of those who objected 
to disclosure of the decision-making process of their organizations, 
BCRA requires persons who make electioneering communications to 
disclose those who share or exercise direction or control over the 
person making the disbursement for electioneering communications. 2 
U.S.C. 434(f)(2)(A). Because neither Alternative 4-A nor Alternative 4-
B in the Electioneering Communications NPRM appear to encompass the 
disclosure required by BCRA, proposed Sec. 104.20(c)(2) would not 
incorporate either of the two alternatives. Instead, proposed paragraph 
(c)(2) would adopt the language of 2 U.S.C. 434(f)(2)(A).
    The Electioneering Communications NPRM sought comment on whether 
the proposed rules should define ``direction or control over the 
activities'' and whether such definition should draw upon the existing 
earmarking regulations at 11 CFR 110.6(d) or the definition of ``to 
direct'' at 11 CFR 300.2(n). A commenter suggested that the definition 
should be broadly defined and should include those persons with the 
ability to influence the decision-making process concerning 
electioneering communications. While this same commenter agreed that 
the definition of ``to direct'' could be modified for inclusion into 
the definition of ``direction or control over the activities,'' another 
commenter stated that it is unsuitable to use the definition of ``to 
direct'' or the earmarking regulations in this context.
    To provide further guidance on proposed Sec. 104.20(c)(2), the 
proposed rules would include a definition of ``sharing or exercising 
direction or control.'' Because it appears that ``direction or 
control'' in the context of 2 U.S.C. 434(f)(2)(A) refers to the 
management or decision-making process of an organization or a qualified 
nonprofit corporation (``QNC''), proposed Sec. 104.20(a)(3) would 
define ``sharing or exercising direction or control'' to mean 
exercising authority or responsibility for policy formulation, day-to-
day management, obligation of funds, or hiring or firing employees. The 
Commission believes that these functions would provide sufficient scope 
to capture responsible persons and entities without sweeping too 
broadly.
    In the alternative, the Commission could define ``sharing or 
exercising direction or control'' to mean the officers, directors, 
partners, or any other individuals who have the authority to bind the 
organization, entity, or person making the disbursement for 
electioneering communication. This alternative, which is not reflected 
in the proposed rules, seeks a more objective, bright-line definition 
of ``direction or control'' and would focus the definition on those 
persons who have the authority to act on behalf of the organization. 
The Commission seeks comments on these approaches to implementing 2 
U.S.C. 434(f)(2)(A). The Commission also seeks comments on how these 
proposals would apply to individuals making electioneering 
communications.

5. Identification of Candidates and Elections

    Under 2 U.S.C. 434(f)(2)(D), the elections to which the 
electioneering communications pertain, as well as the names of all 
clearly identified candidates referred to in the communications, must 
be disclosed. The Electioneering Communications NPRM provided two 
alternatives to proposed 11 CFR 104.19(b)(5), identified as Alternative 
5-A and Alternative 5-B, which would implement this statutory 
provision. 67 FR 51,146. Both alternatives would require disclosure of 
the election and all clearly identified candidates who are referred to 
in the electioneering communication, but contain different language. 
Commenters preferred the language of Alternative 5-B because it would 
be easier to read and would be more consistent with 2 U.S.C. 
434(f)(2)(D). Alternative 5-B arguably also is more consistent with 
what the Commission is proposing as the disclosure date, see above, as 
there is no doubt as to the names of clearly identified candidates 
appearing in a communication once a communication is publicly 
distributed. Accordingly, proposed Sec. 104.20(c)(5) would incorporate 
the language of Alternative 5-B of the Electioneering Communications 
NPRM.

6. Disclosure of Donors

    BCRA requires persons who make electioneering communications and 
create segregated bank accounts for electioneering communications to 
disclose the names and addresses of contributors who contribute an 
aggregate of $1,000 or more to that segregated account. 2 U.S.C. 
434(f)(2)(E). If the organization that makes electioneering 
communications does not use a segregated bank account, then it would be 
required to disclose the names and addresses of contributors who 
contribute an aggregate of $1,000 or more to that organization from the 
beginning of the preceding year through the disclosure date. 2 U.S.C. 
434(f)(2)(F).
A. Contributions/Contributors v. Donations/Donors
    In the Electioneering Communications NPRM, the Commission sought 
comment on whether amounts given to persons who make disbursements for 
electioneering communications are contributions subject to the 
limitations, prohibitions, and reporting requirements of the Act. The 
Commission proposed to treat amounts given to political committees as 
contributions because BCRA refers to ``funds contributed'' and 
``contributors.'' See 2 U.S.C. 434(f)(2)(E) and (F). Conversely, 
amounts given to persons who are not political committees would not be 
considered contributions. Comments on this issue were generally

[[Page 64561]]

favorable to the Commission's approach.\4\
---------------------------------------------------------------------------

    \4\ Further, one commenter, in response to the Commission's 
question concerning treatment of amounts given to non-Federal 
accounts of a separate segregated fund or to non-connected 
committees, argued that amounts given to non-Federal accounts should 
not be treated as contributions subject to the prohibitions against 
corporations and labor organization funding electioneering 
communications.
---------------------------------------------------------------------------

    Upon further analysis of this issue, the Commission proposes a 
different approach as to the question of whether amounts given for 
electioneering communications are contributions or donations. As stated 
in the Electioneering Communications Final Rules, the definition of 
``electioneering communications'' does not include expenditures or 
independent expenditures that are subject to the limitations, 
prohibitions, and reporting requirements of the Act and the 
Commission's regulations. 11 CFR 100.29(c)(3). Communications made by 
political committees that would otherwise qualify as electioneering 
communications would be reported as expenditures or independent 
expenditures because they are made in connection with Federal 
elections. By operation of the exemption of expenditures and 
independent expenditures from the definition of ``electioneering 
communications,'' these communications would not be considered 
electioneering communications. Therefore, political committees, by 
definition, do not make electioneering communications. Consequently, 
only persons who are not political committees would make disbursements 
for electioneering communications.
    As stated above and in the Electioneering Communications NPRM, the 
Commission proposed to designate amounts given for electioneering 
communications purposes to persons who are not political committees as 
``donations.'' The Commission believes that amounts given to entities 
that are not political committees for electioneering communications 
should not be treated as contributions and should not count towards 
political committee status, unless these amounts would otherwise 
constitute a contribution under subparts B and C of part 100. Although 
the statutory language of BCRA uses the terms ``contributor'' and 
``contributed,'' it does not use the term ``contribution'' nor does it 
amend the definition of ``contribution'' in 2 U.S.C. 431(8). Thus, it 
appears that Congress did not intend these amounts to be contributions 
automatically to persons who are not political committees, especially 
in light of the statutory exemption for expenditures and independent 
expenditures from the definition of ``electioneering communications.'' 
Accordingly, proposed Sec. 104.20(c) refers to amounts given for 
electioneering communications as ``donations'' and the givers of the 
amounts as ``donors.'' Additionally, all comments on the Electioneering 
Communications NPRM on this issue favored this approach. The Commission 
again seeks comment on this approach.
B. Disclosure Requirements
    In reading 2 U.S.C. 434(f)(2)(E) and (F) together with 2 U.S.C. 
441b(c)(3)(B), the Commission stated in the Electioneering 
Communications NPRM that these disclosure requirements for segregated 
bank accounts appear to apply only to qualified nonprofit corporations 
organized under 26 U.S.C. 501(c)(4). See 67 FR 51,143. Therefore, 
proposed 11 CFR 104.19(b)(6) would have required only QNCs to disclose 
their contributors for purposes of electioneering communications. See 
11 CFR 114.10 for QNC status.
    The Electioneering Communications NPRM narrative that explained 
proposed section 104.19(b)(7) clearly states that all persons who make 
electioneering communications, including QNCs that do not use 
segregated bank accounts, would be required to disclose their 
contributors who contribute an aggregate of over $1,000 during the 
prescribed time period. 67 FR 51,143. Nevertheless, some commenters 
interpreted proposed Sec. 104.19(b)(7) to apply only to QNCs and 
objected to limiting the disclosure requirements to only QNCs. They 
argued that BCRA does not limit the requirements of 2 U.S.C. 
434(f)(2)(E) and (F) to just QNCs. Consequently, they recommended that 
all persons who make electioneering communications should be required 
to disclose their contributors under proposed Sec. 104.19(b)(7) and the 
option for segregated bank accounts in proposed Sec. 104.19(b)(6) 
should be extended to all persons who make electioneering 
communications. Additionally, some commenters expressed concern as to 
the requirement that organizations would be required to disclose their 
donors because donors may become inhibited from making donations 
aggregating over $1,000.
    Because the Commission sees merit in these arguments, the revised 
proposed rules reflect the commenters' suggestions and would make clear 
that the application of proposed Sec. Sec. 104.20(c)(7) and (8) would 
include all persons who make electioneering communications, not just 
QNCs. Proposed paragraphs (c)(7) and (8) would incorporate the language 
in proposed Sec. Sec. 104.19(b)(6) and (7) with modifications as 
discussed below.
    (1) Disclosure of donors when exclusively using segregated bank 
accounts to make disbursements for electioneering communications
    Under proposed Sec. 104.19(b)(6) in the Electioneering 
Communications NPRM, QNCs that use segregated bank accounts to make 
disbursements for electioneering communications would be required to 
disclose only contributors who contributed an aggregate in excess of 
$1,000 to that segregated bank account. As stated above, the Commission 
agrees with the suggestion that this option should be made available to 
all persons who may make electioneering communications. Accordingly, 
proposed Sec.  104.20(c)(7) would allow all such persons to establish a 
separate bank account to limit their reporting of the identities of 
their donors of $1,000 or more to those who have donated directly to 
that bank account, as long as only funds from the separate bank account 
are used to pay for electioneering communications. Additionally, the 
Commission notes that the final rules at 11 CFR 114.14(d) provide such 
persons that are not QNCs with the option of establishing a segregated 
bank account similar to that allowed to QNCs.
    (2) Disclosure of donors when not exclusively using segregated bank 
accounts to make disbursements for electioneering communications
    Because there was some confusion as to the scope of the reporting 
requirement in proposed 11 CFR 104.19(b)(7), proposed 11 CFR 
104.20(c)(8) would differ from proposed Sec.  104.19(b)(7) in that it 
would remove the reference to QNCs. Thus, proposed Sec.  104.20(c)(8) 
would make clear that all persons who make electioneering 
communications would be required to disclose their donors who donate 
over $1,000 in the aggregate, if they do not use segregated bank 
accounts.
    One commenter to the Electioneering Communications NPRM argued that 
the members of the organizations it represented could be subject to 
negative consequences if their names are disclosed in connection with 
an electioneering communication. The FECA provides for an advisory 
opinion process concerning the application of any of the statutes 
within the Commission's jurisdiction or any regulations promulgated by 
the Commission, and such a group could also seek an advisory opinion 
from the

[[Page 64562]]

Commission to determine if the group would be entitled to an exemption 
from disclosure that would be analogous to the exemption provided to 
the Socialist Workers Party in Advisory Opinions 1990-13 and 1996-46 
(both of which allowed the Socialist Workers Party to withhold the 
identities of its contributors and persons to whom it had disbursed 
funds because of a reasonable probability that the compelled disclosure 
of the party's contributors' names would subject them to threats, 
harassment, or reprisals from either Government officials or private 
parties.). BCRA's legislative history recognizes the need for limited 
exceptions in these circumstances. See 148 Cong. Rec. S2136 (daily ed. 
Mar. 20, 2002) (remarks of Sen. Snowe).

7. Other Content Requirements

    Proposed Sec.  104.20(c) would require disclosure of additional 
information, not described above, in connection with the reporting of 
electioneering communications as mandated by BCRA. See 2 U.S.C. 
434(f)(2)(A) and (C). Proposed paragraph (c)(1) would require 
identification of the person making the disbursement or the person's 
principal place of business. Proposed paragraph (c)(3) would require 
identification of the custodian of the books and accounts. Proposed 
paragraph (c)(4) would require disclosure of information about 
disbursements that exceed $200. Proposed paragraph (c)(6) would require 
identifying the disclosure date.

8. Recordkeeping Requirement

    Proposed 11 CFR 104.20(d) would require all persons who make 
electioneering communications or accept donations for the purpose of 
making electioneering communications to maintain records in accordance 
with 11 CFR 104.14. In the Electioneering Communications NPRM, proposed 
Sec.  104.19(c) would have exempted QNCs from the recordkeeping 
requirements. The commenters who addressed this issue were split on 
whether QNCs should be exempted from the recordkeeping requirements. A 
commenter who did not support the exemption argued that because these 
entities are required to report their electioneering communications, 
they should also be required to maintain records that relate to the 
electioneering communications in order to support their reports.
    In determining that all of the reporting and recordkeeping 
requirements for political committees were too burdensome for QNCs 
making independent expenditures, the Supreme Court in FEC v. 
Massachusetts Citizens For Life, Inc. (``MCFL'') noted that MCFL, Inc. 
was subject to more ``extensive requirements and more stringent 
restrictions'' than unincorporated nonprofit organizations. 479 U.S. 
238, 254-255 (1986). In contrast, proposed Sec.  104.20(d) would 
require QNCs to maintain only those records that pertain to their 
electioneering communications which should not be burdensome for them. 
Additionally, this recordkeeping requirement is no different than what 
is required of any other person, including unincorporated nonprofit 
organizations, that make disbursements for electioneering 
communications. Furthermore, the availability of these records would be 
necessary to assess the accuracy of the electioneering communications 
reports filed by QNCs. Therefore, proposed paragraph (d) would not 
include an exemption for QNCs. The Commission welcomes further comments 
on this issue.

9. Proposed Amendment to 11 CFR 105.2

    The Electioneering Communications NPRM proposed amending current 11 
CFR 105.2 to require principal campaign committees of Senatorial 
candidates and other political committees that support only Senatorial 
candidates to file their statements of electioneering with the 
Commission. The Commission, however, has determined that political 
committees do not make electioneering communications by operation of 
the definition of ``electioneering communications'' in 11 CFR 100.29. 
Therefore, proposed Sec.  105.2(b) would not incorporate the language 
from the electioneering communications NPRM or include mention of 
statements of electioneering communications.

10. Filing with the Secretary of State

    Unlike the proposed provisions for independent expenditures, the 
proposed rules for electioneering communications do not include 
provisions that remove the requirement to file reports of 
electioneering communications with the Secretary of State if that state 
has obtained a waiver under 11 CFR 108.1(b). See proposed 11 CFR 
104.4(e), below. The Commission seeks comments on whether proposed 11 
CFR 104.20 should include such a provision. (At the current time, only 
1 state, Montana, and two territories, Guam and Puerto Rico, have not 
obtained waivers.)

Principal Campaign Committee and National Political Party Committee 
Reporting Schedules

Proposed 11 CFR 104.5(a)--Principal Campaign Committees of House and 
Senate Candidates

    Proposed 11 CFR 104.5(a) would set forth the new reporting schedule 
for the principal campaign committees of House of Representatives and 
Senate candidates. Prior to BCRA, the principal campaign committees of 
House and Senate candidates were allowed, in the non-election years, to 
file semi-annually. After November 6, 2002, excluding reports for 
runoff elections, principal campaign committees of House and Senate 
candidates must file quarterly in non-election years, as well as in the 
election year. 2 U.S.C. 434(a)(2)(B). Proposed revised Sec.  
104.5(a)(1) would state that these committees must file quarterly. Like 
other quarterly reports, these must be complete as of March 31, June 
30, September 30, and December 31, and must be filed by April 15, July 
15, October 15, and January 31 of the following year, respectively. 
Proposed paragraph (a)(2) of 11 CFR 104.5 would set forth the 
requirements for pre-election and post-general election reports in the 
election year, which would be identical to paragraphs (a)(1)(i) and 
(ii) of the pre-BCRA section. The rules regarding semi-annual reporting 
(in pre-BCRA Sec.  104.5(a)) would be deleted. Please note that these 
new reporting dates do not affect the principal campaign committees or 
other authorized committees of Presidential candidates.

Proposed 11 CFR 104.5(c)--Committees Other Than Authorized Committees 
of Candidates

    Proposed revisions to the introductory language for paragraph (c) 
would clarify that while non-authorized political committees may choose 
to file quarterly or monthly, a national committee of a political party 
must report monthly under proposed 11 CFR 104.5(c)(4).
    Proposed 11 CFR 104.5(c)(4) would be a new provision implementing 
the BCRA requirement that national political party committees must 
report on a monthly basis. 2 U.S.C. 434(a)(4)(B). Previously, national 
party committees were allowed to file quarterly in the election year 
and semi-annually in the non-election years. The changes to the Act by 
BCRA specifically state that national political party committees must 
file monthly, including pre-general election and post-general election 
reports. These changes may have been intended to remove any

[[Page 64563]]

doubt as to whether national political party committees that filed 
quarterly had to file these reports if they did not make any 
contributions or expenditures on behalf of candidates in these 
elections during pre-BCRA election reporting periods. These rules would 
implement BCRA's amendment.
    The proposed rules would apply to the Congressional campaign 
committees of the political parties as national political party 
committees. The Commission seeks comments on whether Congressional 
campaign committees should so specifically be included in the 
regulations.

11 CFR 104.3(g)--Funds for Party Office Buildings

    Before BCRA, the Act and Commission regulations provide an 
exception to the definition of contribution and expenditure for 
donations to a national or State party committee that are specifically 
designated to defray any cost incurred for the construction or purchase 
of its office facility. Pre-BCRA 2 U.S.C 431(8)(B)(vii); pre-BCRA 11 
CFR 100.7(b)(12). This exception is reflected in current 11 CFR 
104.3(g), which provides that funds or anything of value that were 
designated for party office building funds and received by a party 
committee must be reported as memo entries.
    To implement BCRA, the Commission adopted new regulations at 11 CFR 
300.12 and 300.35, which eliminate this exception for national party 
committees and provide that the source and reporting of donations used 
for the costs incurred by a State, district, or local party committee 
for the purchase or construction of its office building are subject to 
State law if donated to a non-Federal account of the committee. 
``Prohibited and Excessive Contributions: Non-Federal Funds or Soft 
Money; Final Rule,'' 67 FR 49,123 and 49,127. However, if funds or 
things of value are contributed to (or for use by) the Federal account 
of a State, district, or local party committee for the purchase or 
construction of its office building, then the amounts donated are 
contributions under the Act. Consequently, proposed paragraph (g) of 11 
CFR 104.3 would make it clear that any funds or things of value 
received by a Federal account and used for the purchase or construction 
of an office building, regardless of a specific contributor 
designation, are contributions and are not treated differently from 
other funds or things of value donated to a Federal account.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that the attached proposed rules, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. The bases of this certification 
are several. There are four areas in which new rules are being 
proposed. The economic impact on small entities of each subject of new 
proposed rules is addressed below.
    Independent expenditure reporting First, with regard to the 
proposed new rules addressing independent expenditures that the 
national, State, and local party committees of the two major political 
parties, and other political committees are not small entities under 5 
U.S.C. 601 because they are not small businesses, small organizations, 
or small governmental jurisdictions. Further, individual citizens 
operating under these rules are not small entities.
    The small entities to which the rules would apply would not be 
unduly burdened by the proposed rules because there is no significant 
extra cost involved, as independent expenditures must already be 
reported. Collectively, the differential costs will not exceed 100 
million dollars per year. In addition, new reporting requirements would 
not significantly increase costs, as they only apply to those spending 
$10,000 or more on independent expenditures, and the actual reporting 
requirements are the minimum necessary to comply with the new statute 
enacted by Congress.
    Electioneering communications Second, with regard to the proposed 
rules addressing electioneering communications, the only burden the 
proposed rules impose is on persons who make electioneering 
communications, and that burden is a minimal one, requiring persons who 
make such communications to provide the names and addresses of those 
who made donations to that person when the costs of the electioneering 
communication exceed $10,000. If that person is a corporation that 
qualifies as a QNC, then it must also certify that it meets that 
status. The number of small entities affected by the proposed rules is 
not substantial.
    The Commission would adopt several rules that seek to reduce any 
burden that might accrue to persons who must file reports. First, the 
Commission would interpret the reporting requirement such that no 
reporting is required until after an electioneering communication is 
publicly distributed. More than likely, this would only require that 
person to file one report with the Commission. Also, the Commission 
would allow all persons paying for electioneering communications to 
establish segregated accounts, and to report the names and addresses of 
only those persons who contributed to those accounts. Further, the 
Commission would interpret the statute to not require that a 
certification of QNC status be filed until the person is also required 
to file a disclosure report. These are significant steps the Commission 
would take to reduce the burden on those who would make electioneering 
communications. The overall burden on the small entities affected by 
these proposed rules for reporting electioneering communications would 
not amount to $100 million on an annual basis. Moreover, these proposed 
rules would be no more than what is strictly necessary to comply with 
the new statute enacted by Congress.
    Reporting schedules for house and senate candidates Third, 
regarding the new rules requiring a different non-election year 
reporting schedule for the authorized committees of House and Senate 
candidates, the reporting frequencies have increased, however, the 
burden would not amount to $100 million on an annual basis. Moreover, 
these proposed rules would be no more than what is strictly necessary 
to comply with the new statute enacted by Congress.
    Reporting schedules for national committees of political parties 
Fourth, regarding the new rules requiring a different reporting 
schedule for national committees of political parties, as noted above, 
the two major national party committees are not small entities under 5 
U.S.C. 601.

List of Subjects

11 CFR Part 100

    Elections.

11 CFR Part 104

    Campaign funds, Political committees and parties, Reporting and 
recordkeeping requirements.

11 CFR Part 105

    Campaign funds, Political candidates, Political committees and 
parties, Reporting and recordkeeping requirements.

11 CFR Part 108

    Elections, Reporting and recordkeeping requirements.

11 CFR Part 109

    Elections, Reporting and Recordkeeping requirements.


[[Page 64564]]


    For the reasons set out in the preamble, the Federal Election 
Commission proposes to amend subchapter A of chapter I of title 11 of 
the Code of Federal Regulations as follows:

PART 100--SCOPE AND DEFINITIONS

    1. The authority citation for part 100 continues to read as 
follows:

    Authority: 2 U.S.C. 431, 434, and 438(a)(8).

    2. Section 100.19 is amended as follows:
    a. Revising the introductory text and paragraphs (b) through (e).
    b. Adding a heading to paragraph (a) and adding paragraph (f).
    The revisions and additions read as follows:


Sec.  100.19  File, filed, or filing (2 U.S.C. 434(a)).

    With respect to documents required to be filed under 11 CFR parts 
101, 102, 104, 105, 107, 108, and 109, and any modifications or 
amendments thereto, the terms file, filed, and filing mean one of the 
actions set forth in paragraphs (a) through (f) of this section. For 
purposes of this section, document means any report, statement, notice, 
or designation required by the Act to be filed with the Commission or 
the Secretary of the Senate.
    (a) Where to deliver reports. * * *
    (b) Timely filed. General rule. A document other than those 
addressed in paragraphs (c) through (f) of this section, is timely 
filed upon deposit as registered or certified mail in an established 
U.S. Post Office and postmarked no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the day of the filing date, except that pre-
election reports so mailed must be postmarked no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the fifteenth day before the date of 
the election. Documents sent by first class mail must be received by 
the close of business on the prescribed filing date to be timely filed.
    (c) Electronically filed reports. For electronic filing purposes, a 
document is timely filed when it is received and validated by the 
Federal Election Commission at or before 11:59 p.m. Eastern Standard/
Daylight Time on the filing date.
    (d) 48-hour and 24-hour reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. A 48-hour report 
of independent expenditures under 11 CFR 104.4(b) or 109.10(c) is 
timely filed when it is received by the Commission no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which independent expenditures aggregate $10,000 or more in 
accordance with 11 CFR 104.4(f), any time during the calendar year up 
to and including the 20th day before an election.
    (2) 24-hour reports of independent expenditures. A 24-hour report 
of independent expenditures under 11 CFR 104.4(c) or 109.10(d) is 
timely filed when it is received by the Commission no later than 11:59 
p.m. Eastern Standard/Daylight Time of the day following the date on 
which independent expenditures aggregate at least $1,000, in accordance 
with 11 CFR 104.4(f), during the period less than 20 days but more than 
24 hours before an election.
    (3) Permissible means of filing. In addition to other permissible 
means of filing, a 24-hour report or 48-hour report of independent 
expenditures may be filed using a facsimile machine or by electronic 
mail if the filer is not required to file electronically in accordance 
with 11 CFR 104.18.
    (e) 48-hour statements of last-minute contributions. In addition to 
other permissible means of filing, authorized committees that are not 
required to file electronically may file 48-hour notifications of 
contributions using facsimile machines. All authorized committees that 
file with the Commission, including electronic filers, may use the 
Commission's web site's on-line program to file 48-hour notifications 
of contributions. See 11 CFR 104.5(f).
    (f) 24-hour statements of electioneering communications. A 24-hour 
statement of electioneering communications under 11 CFR 104.20 is 
timely filed when it is received by the Commission within 24 hours of 
the disclosure date (see 11 CFR 104.20(a)(1)). In addition to other 
permissible means of filing, a 24-hour statement of electioneering 
communications may be filed using a facsimile machine or by electronic 
mail if the filer is not required to file electronically in accordance 
with 11 CFR 104.18.

PART 104--REPORTS BY POLITICAL COMMITTEES (2 U.S.C. 434)

    3. The authority citation for part 104 continues to read as 
follows:

    Authority: 2 U.S.C. 431(1), 431(8), 431(9), 432(i), 434, 
438(a)(8) and (b), and 439a.

    4. In Sec.  104.3, paragraph (g) is revised to read as follows:


Sec.  104.3  Contents of reports (2 U.S.C. 434(b), 439a).

* * * * *
    (g) Building funds.
    (1) A political party committee must report gifts, subscriptions, 
loans, advances, deposits of money, or anything of value that are used 
by the political party committee's Federal accounts to defray the costs 
of construction or purchase of the committee's office building. See 11 
CFR 300.35. Such a receipt is a contribution subject to the limitations 
and prohibitions of the Act and reportable as a contribution, 
regardless of whether the contributor has designated the funds or 
things of value for such purpose and regardless of whether such funds 
are deposited in a separate Federal account dedicated to that purpose.
    (2) Gifts, subscriptions, loans, advances, deposits of money, or 
anything of value that are donated to a non-Federal account of a State, 
district, or local party committee and are used by that account for the 
purchase or construction of its office building are not contributions 
subject to the reporting requirements of the Act. The reporting of such 
funds or things of value is subject to State law.
    (3) Gifts, subscriptions, loans, advances, deposits of money, or 
anything of value that are used by a national committee of a political 
party to defray the costs of construction or purchase of the national 
committee's office building are contributions subject to the 
requirements of paragraph (g)(1) of this section.
* * * * *
    5. Section 104.4 is revised to read as follows:


Sec.  104.4  Independent expenditures by political committees (2 U.S.C. 
434(b), (d), and (g)).

    (a) Regularly scheduled reporting. Every political committee that 
makes independent expenditures must report all such independent 
expenditures on Schedule E in accordance with 11 CFR 104.3(b)(3)(vii). 
Every person other than a political committee must report independent 
expenditures in accordance with 11 CFR 109.10.
    (b) Reports of independent expenditures made at any time up to and 
including the 20th day before an election.
    (1) Independent expenditures aggregating less than $10,000 in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X at the time of their regular reports in accordance with 11 CFR 
104.3, 104.5 and 104.9, all independent expenditures aggregating less 
than $10,000 with respect to a given election any time during the 
calendar year up to and

[[Page 64565]]

including the 20th day before an election.
    (2) Independent expenditures aggregating $10,000 or more in a 
calendar year. Political committees must report on Schedule E of FEC 
Form 3X all independent expenditures aggregating $10,000 or more with 
respect to a given election any time during the calendar year up to and 
including the 20th day before an election. Political committees must 
ensure that the Commission receives these reports no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which a communication that constitutes an independent 
expenditure is publicly distributed or otherwise publicly disseminated. 
Each time subsequent independent expenditures relating to the same 
election aggregate an additional $10,000 or more, the political 
committee must ensure that the Commission receives a new 48-hour report 
of the subsequent independent expenditures. See 11 CFR 104.4(f) for 
aggregation. Each 48-hour report must contain the information required 
by 11 CFR 104.3(b)(3)(vii) indicating whether the independent 
expenditure is made in support of, or in opposition to, the candidate 
involved. In addition to other permissible means of filing, a political 
committee may file the 48-hour reports under this section by any of the 
means permissible under 11 CFR 100.19(d)(3).
    (c) Reports of independent expenditures made less than 20 days, but 
more than 24 hours before the day of an election. Political committees 
must ensure that the Commission receives reports of independent 
expenditures aggregating $1,000 or more with respect to a given 
election, after the 20th day, but more than 24 hours, before 12:01 a.m. 
of the day of the election, no later than 11:59 p.m. Eastern Standard/
Daylight Time of the day following the date on which a communication is 
publicly distributed or otherwise publicly disseminated. Each time 
subsequent independent expenditures relating to the same election 
aggregate $1,000 or more, the political committee must ensure that the 
Commission receives a new 24-hour report of the subsequent independent 
expenditures. Each 24-hour report shall contain the information 
required by 11 CFR 104.3(b)(3)(vii) indicating whether the independent 
expenditure is made in support of, or in opposition to, the candidate 
involved. Political committees may file reports under this section by 
any of the means permissible under 11 CFR 100.19(d)(3).
    (d) Verification. Political committees must verify reports of 
independent expenditures filed under paragraph (b) or (c) of this 
section by one of the methods stated in paragraph (d)(1) or (2) of this 
section. Any report verified under either of these methods shall be 
treated for all purposes (including penalties for perjury) in the same 
manner as a document verified by signature.
    (1) For reports filed on paper (e.g., by hand-delivery, U.S. Mail 
or facsimile machine), the treasurer of the political committee that 
made the independent expenditure must certify, under penalty of 
perjury, the independence of the expenditure by handwritten signature 
immediately following the certification required by 11 CFR 
104.3(b)(3)(vii).
    (2) For reports filed by electronic mail, the treasurer of the 
political committee that made the independent expenditure shall 
certify, under penalty of perjury, the independence of the expenditure 
by typing the treasurer's name immediately following the certification 
required by 11 CFR 104.3(b)(3)(vii).
    (e) Where to file. Reports of independent expenditures under this 
section and part 109 shall be filed as follows.
    (1) For independent expenditures in support of or in opposition to, 
a candidate for President or Vice President: with the Commission and 
the Secretary of State for the State in which the expenditure is made.
    (2) For independent expenditures in support of, or in opposition 
to, a candidate for the Senate or the House of Representatives: with 
the Commission and the Secretary of State for the State in which the 
candidate is seeking election.
    (3) Notwithstanding the requirements of paragraphs (e)(1) and (2) 
of this section, political committees and other persons shall not be 
required to file reports of independent expenditures with the Secretary 
of State if that State has obtained a waiver under 11 CFR 108.1(b).
    (f) Aggregating independent expenditures for reporting purposes. 
For purposes of determining whether 24-hour and 48-hour reports must be 
filed in accordance with paragraphs (b) and (c) of this section and 11 
CFR 109.10(c) and (d), aggregations of independent expenditures must be 
calculated as of the first date during the calendar year on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated, and as of the date that 
any such communication with respect to the same election is 
subsequently publicly distributed or otherwise publicly disseminated. 
Every person must include in the aggregate total all disbursements for 
independent expenditures, and all enforceable contracts, either oral or 
written, obligating funds for disbursements for independent 
expenditures, made with respect to any communication that has been 
publicly distributed or otherwise publicly disseminated, during the 
calendar year, with respect to a given election for Federal office.
    6. In Sec.  104.5, paragraphs (a) and (g) are revised and 
introductory text to paragraph (c), and paragraphs (c)(4) and (j) are 
added to read as follows:


Sec.  104.5  Filing dates (2 U.S.C. 434(a)(2)).

    (a) Principal campaign committee of House or Senate candidate. Each 
treasurer of a principal campaign committee supporting a candidate for 
the House of Representatives or for the Senate must file reports on the 
dates specified at paragraph (a)(1) of this section in election years 
and non-election years, and paragraph (a)(2) of this section in 
election years.
    (1) Quarterly reports.
    (i) Quarterly reports must be filed no later than the 15th day 
following the close of the immediately preceding calendar quarter (on 
April 15, July 15, and October 15), except that the report for the 
final calendar quarter of the year must be filed no later than January 
31 of the following calendar year.
    (ii) The report must be complete as of the last day of each 
calendar quarter.
    (iii) The requirement for a quarterly report shall be waived if, 
under paragraph (a)(2) of this section, a pre-election report is 
required to be filed during the period beginning on the 5th day after 
the close of the calendar quarter and ending on the 15th day after the 
close of the calendar quarter.
    (2) Additional reports in the election year.
    (i) Pre-election reports.
    (A) Pre-election reports for the primary and general election must 
be filed no later than 12 days before any primary or general election 
in which the candidate seeks election. If sent by registered or 
certified mail, the report must be mailed no later than the 15th day 
before any election.
    (B) The pre-election report must disclose all receipts and 
disbursements as of the 20th day before a primary or general election.
    (ii) Post-general election report.
    (A) The post-general election report must be filed no later than 30 
days after any general election in which the candidate seeks election.

[[Page 64566]]

    (B) The post-general election report must be complete as of the 
20th day after the general election.
* * * * *
    (c) Committees other than authorized committees of candidates. Each 
political committee that is not the authorized committee of a 
candidate, except for a national committee of a political party 
(including the national Congressional campaign committees of a 
political party), which must comply with paragraph (c)(4) of this 
section, must file either: Election year and non-election year reports 
as prescribed at paragraphs (c)(1) and (2) of this section; or monthly 
reports as prescribed at paragraph (c)(3) of this section. A political 
committee reporting under 11 CFR 104.5(c), except for a national 
committee of a political party (including the national Congressional 
campaign committees of a political party), may elect to change the 
frequency of its reporting from monthly to quarterly and semi-annually 
or vice versa. A committee, except for national committee of a 
political party (including the national Congressional campaign 
committees of a political party), may change its filing frequency only 
after notifying the Commission in writing of its intention at the time 
it files a required report under its current filing frequency. Such 
committee will then be required to file the next required report under 
its new filing frequency. A committee may change its filing frequency 
no more than once per calendar year.
* * * * *
    (4) A national committee of a political party, including a national 
Congressional campaign committee, must report monthly in accordance 
with paragraph (c)(3) of this section.
* * * * *
    (g) Reports of independent expenditures.
    (1) 48-hour reports of independent expenditures. Every person who 
or which must file a 48-hour report under 11 CFR 104.4(b) must ensure 
the Commission receives the report no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the second day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures by that person relating to the same election 
as that to which the previous report relates aggregate $10,000 or more, 
that person must ensure that the Commission receives a new 48-hour 
report of the subsequent independent expenditures no later than 11:59 
p.m. Eastern Standard/Daylight Time of the second day following the 
date on which the $10,000 threshold is reached or exceeded. See 11 CFR 
104.4(f) for aggregation.
    (2) 24-hour report of independent expenditures. Every person who or 
which must file a 24-hour report under 11 CFR 104.4(c) must ensure that 
the Commission receives the report no later than 11:59 p.m. Eastern 
Standard/Daylight Time of the day following the date on which a 
communication that constitutes an independent expenditure is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures by that person relating to the same election 
as that to which the previous report relates aggregate $1,000 or more, 
that person must ensure that the Commission receives a 24-hour report 
of the subsequent independent expenditures no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the day following the date on which 
the $1,000 threshold is reached or exceeded. See 11 CFR 104.4(f) for 
aggregation.
    (3) Each 24-hour or 48-hour report of independent expenditures 
filed under this section shall contain the information required by 11 
CFR 104.3(b)(3)(vii) indicating whether the independent expenditure is 
made in support of, or in opposition to, the candidate involved.
    (4) For purposes of this part, a communication that is mailed to 
its intended audience is publicly disseminated when it is relinquished 
to the U.S. Postal Service.
* * * * *
    (j) 24-hour statements of electioneering communications. Every 
person who has made a disbursement or who has executed a contract to 
make a disbursement for the direct costs of producing or airing 
electioneering communications as defined in 11 CFR 100.29 aggregating 
in excess of $10,000 during any calendar year shall file a statement 
with the Commission by 11:59 p.m. Eastern Standard/Daylight Time of the 
day following the disclosure date. The statement shall be filed under 
penalty of perjury and in accordance with 11 CFR 104.20.


Sec.  104.19  [Reserved]

    7. Section 104.19 is added and reserved.
    8. Section 104.20 is added to read as follows:


Sec.  104.20  Reporting electioneering communications (2 U.S.C. 
434(f)).

    (a) Definitions.
    (1) Disclosure date means:
    (i) The first date during the calendar year on which an 
electioneering communication is publicly distributed provided that the 
person making the electioneering communication has made one or more 
disbursements, or has executed one or more contracts to make 
disbursements, for the direct costs of producing or airing 
electioneering communications aggregating in excess of $10,000; or
    (ii) Any other date during the same calendar year on which an 
electioneering communication is publicly distributed provided that the 
person making the electioneering communication has made one or more 
disbursements, or has executed one or more contracts to make 
disbursements, for the direct costs of producing or airing 
electioneering communications aggregating in excess of $10,000 since 
the most recent disclosure date during such calendar year.
    (2) Direct costs of producing or airing electioneering 
communications means the following:
    (i) Costs charged by a production company, such as studio rental 
time, staff salaries, costs of video or audio recording media, and 
talent; or
    (ii) The cost of airtime on broadcast, cable or satellite radio and 
television stations, and the charges for a broker to purchase the 
airtime.
    (3) Sharing or exercising direction or control means exercising 
authority or responsibility for:
    (i) Development, establishment, or change of policy for the 
organization or corporation;
    (ii) Day-to-day management of the organization or corporation;
    (iii) Obligation of funds or signing contracts; or
    (iv) Hiring or firing employees.
    (4) Identification has the same meaning as in 11 CFR 100.12.
    (5) Publicly distributed has the same meaning as in 11 CFR 
100.29(a)(5).
    (b) Who must report. Every person who has made a disbursement or 
who has executed a contract to make a disbursement for the direct costs 
of producing or airing electioneering communications, as defined in 11 
CFR 100.29, aggregating in excess of $10,000 during any calendar year 
shall file a statement with the Commission by 11:59 p.m. Eastern 
Standard/Daylight Time of the day following the disclosure date. The 
statement shall be filed under penalty of perjury and contain the 
information set forth in paragraph (c) of this section. Persons other 
than political committees must file these 24-hour statements on FEC 
Form 9.
    (c) Contents of statement. Every person described in paragraph (b) 
of this

[[Page 64567]]

section shall disclose the following information:
    (1) The identification of the person who made the disbursement, or 
who executed a contract to make a disbursement, and, if the person is 
not an individual, the person's principal place of business;
    (2) The identification of any person sharing or exercising 
direction or control over the activities of the person who made the 
disbursement, or who executed a contract to make a disbursement, for 
electioneering communications;
    (3) The identification of the custodian of the books and accounts 
from which the disbursements for electioneering communications were 
made;
    (4) The amount of each disbursement, or amount obligated, of more 
than $200 during the period covered by the statement, the date the 
disbursement was made, or the contract was executed, and the 
identification of the person to whom that disbursement was made;
    (5) All clearly identified candidates referred to in the 
communication and the elections in which they are candidates;
    (6) The disclosure date as defined in this section.
    (7) If the disbursements were paid exclusively out of a segregated 
bank account consisting of funds provided solely by individuals who are 
United States citizens, United States nationals, or who are lawfully 
admitted for permanent residence under 8 U.S.C. 1101(a)(20), the name 
and address of each donor who donated an amount aggregating $1,000 or 
more to the segregated bank account, aggregating since the first day of 
the preceding calendar year; and
    (8) If the disbursements were not paid exclusively from the 
segregated bank account, the name and address of each donor who donated 
an amount aggregating $1,000 or more to the person making the 
disbursement, aggregating since the first day of the preceding calendar 
year.
    (d) Recordkeeping. All persons who make electioneering 
communications or who accept donations for the purpose of making 
electioneering communications, must maintain records in accordance with 
11 CFR 104.14.

PART 105--DOCUMENT FILING (2 U.S.C. 432(g))

    9. The authority citation for part 105 is revised to read as 
follows:

    Authority: 2 U.S.C. 432(g), 434, 438(a)(8).

    10. Section 105.2 is revised to read as follows:


Sec.  105.2  Place of filing; Senate candidates, their principal 
campaign committees, and committees supporting only Senate candidates 
(2 U.S.C. 432(g)(2), 434(g)(3)).

    (a) General Rule. Except as provided in paragraph (b) of this 
section, all designations, statements, reports, and notices as well as 
any modification(s) or amendment(s) thereto, required to be filed under 
11 CFR parts 101, 102, and 104 by a candidate for nomination or 
election to the office of United States Senator, by his or her 
principal campaign committee or by any other political committee(s) 
that supports only candidates for nomination for election or election 
to the Senate of the United States shall be filed in original form 
with, and received by, the Secretary of the Senate, as custodian for 
the Federal Election Commission.
    (b) Exception. 24-hour and 48-hour reports of independent 
expenditures must be filed with the Commission and not with the 
Secretary of the Senate, even if the communication refers to a Senate 
candidate:

PART 108--FILING COPIES OF REPORTS AND STATEMENTS WITH STATE 
OFFICERS (2 U.S.C. 439)

    11. The authority citation for part 108 continues to read as 
follows:

    Authority: 2 U.S.C. 434(a)(2), 438(a)(8), 439, 453.

    12. Paragraph (b) of Sec.  108.1 is revised to read as follows:


Sec.  108.1  Filing requirements (2 U.S.C. 439(a)(1)).

* * * * *
    (b) The filing requirements and duties of State officers under this 
part 108 shall not apply to a State if the Commission has determined 
that the State maintains a system that can electronically receive and 
duplicate reports and statements filed with the Commission. Once a 
State has obtained a waiver pursuant to this paragraph, the waiver 
shall apply to all reports that can be electronically accessed and 
duplicated from the Commission, regardless of whether the report or 
statement was originally filed with the Commission. The list of states 
that have obtained waivers under this section is available on the 
Commission's web site.

PART 109--COORDINATED AND INDEPENDENT EXPENDITURES (2 U.S.C. 
431(17), 441a, Pub. L. 107-155 Sec. 214(c) (March 27, 2002))

    13. The authority citation for part 109 continues to read as 
follows:

    Authority: 2 U.S.C. 431(17), 434(c), 441a; Pub. L. 155-107 sec. 
214(c).


Sec.  109.2  [Removed and reserved]

    14. Section 109.2 is removed and reserved.
    15. Section 109.10 is added to read as follows:


Sec.  109.10  How do political committees and other persons report 
independent expenditures?

    (a) Political committees, including political party committees, 
must report independent expenditures under 11 CFR 104.4.
    (b) Every person, other than a political committee, who makes 
independent expenditures aggregating in excess of $250 with respect to 
a given election in a calendar year shall file a verified statement, or 
report on FEC Form 5 in accordance with 11 CFR 104.4(e) containing the 
information required by paragraph (e) of this section. Every person 
filing a report or statement under this section shall do so at the end 
of the reporting period during which any such independent expenditures 
that aggregate in excess of $250 are made and in any reporting period 
thereafter in which additional independent expenditures are made.
    (c) Every person, other than a political committee, who makes 
independent expenditures aggregating $10,000 or more with respect to a 
given election any time during the calendar year up to and including 
the 20th day before an election, must report the independent 
expenditures on FEC Form 5, or by signed statement if the person is not 
otherwise required to file electronically under 11 CFR 104.18. (See 11 
CFR 104.4(f) for aggregation). The person making the independent 
expenditures aggregating $10,000 or more must ensure that the 
Commission receives the report or statement no later than 11:59 p.m. 
Eastern Standard/Daylight Time of the second day following the date on 
which a communication is publicly distributed or otherwise publicly 
disseminated. Each time subsequent independent expenditures relating to 
the same election aggregate an additional $10,000 or more, the person 
making the independent expenditures must ensure that the Commission 
receives a new 48-hour report of the subsequent independent 
expenditures. Each 48-hour report must contain the information required 
by paragraph (e)(1) of this section.
    (d) Every person making, after the 20th day, but more than 24 hours 
before 12:01 a.m. of the day of an election, independent expenditures 
aggregating $1,000 or more with respect to a given election must report 
those independent expenditures and ensure that the Commission receives 
the report or

[[Page 64568]]

signed statement no later than 11:59 p.m. Eastern Standard/Daylight 
Time of the day following the date on which a communication is publicly 
distributed or otherwise publicly disseminated. Each time subsequent 
independent expenditures relating to the same election aggregate $1,000 
or more, the person making the independent expenditures must ensure 
that the Commission receives a new 24-hour report of the subsequent 
independent expenditures. See 11 CFR 104.4(f) for aggregation. Such 
report or statement shall contain the information required by paragraph 
(e) of this section.
    (e) Content of verified statements and verification of reports and 
statements.
    (1) Contents of verified statement. If a signed statement is 
submitted, the statement shall include:
    (i) The reporting person's name, mailing address, occupation, and 
the name of his or her employer, if any;
    (ii) The identification (name and mailing address) of the person to 
whom the expenditure was made;
    (iii) The amount, date, and purpose of each expenditure;
    (iv) A statement that indicates whether such expenditure was in 
support of, or in opposition to a candidate, together with the 
candidate's name and office sought;
    (v) A verified certification under penalty of perjury as to whether 
such expenditure was made in cooperation, consultation, or concert 
with, or at the request or suggestion of a candidate, a candidate's 
authorized committee, or their agents, or a political party committee 
or its agents; and
    (vi) The identification of each person who made a contribution in 
excess of $200 to the person filing such report, which contribution was 
made for the purpose of furthering the reported independent 
expenditure.
    (2) Verification of independent expenditure statements and reports. 
Every person shall verify reports and statements of independent 
expenditures filed pursuant to the requirements of this section by one 
of the methods stated in paragraph (e)(2)(i) or (ii) of this section. 
Any report or statement verified under either of these methods shall be 
treated for all purposes (including penalties for perjury) in the same 
manner as a document verified by signature.
    (i) For reports or statements filed on paper (e.g., by hand-
delivery, U.S. Mail, or facsimile machine), the person who made the 
independent expenditure shall certify, under penalty of perjury, the 
independence of the expenditure by handwritten signature immediately 
following the certification required by paragraph (e)(1)(v) of this 
section.
    (ii) For reports or statements filed by electronic mail, the person 
who made the independent expenditure shall certify, under penalty of 
perjury, the independence of the expenditure by typing the treasurer's 
name immediately following the certification required by paragraph 
(e)(1)(v) of this section.

    Dated: October 11, 2002.
David. M. Mason,
Chairman, Federal Election Commission.
[FR Doc. 02-26394 Filed 10-18-02; 8:45 am]
BILLING CODE 6715-01-P